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Loren v. City of New York

United States District Court, S.D. New York

July 11, 2017

DEAN LOREN, Plaintiff,
v.
THE CITY OF NEW YORK, MANHATTAN BOROUGH PRESIDENT, MANHATTAN COMMUNITY ACCESS CORPORATION, JEANETTE SANTIAGO, CORY BRYCE, DANIEL COUGHLIN, GAIL BREWER, as Manhattan Borough President, ENRIQUE HERNANDEZ, JR., President of Inter-Con Security, INTER-CON SECURITY, ROBERT B. SCHUMER, ROBERT D. MARCUS, as Former CEO of TIME WARNER CABLE, ROBERT PERRY, GLORIA MESSER, TIME WARNER CABLE, JUNE W. MIDDLETON, CHRIS GETHARD, and ZENAIDA MENDEZ, Defendants.

          OPINION & ORDER

          PAUL A. ENGELMAYER, District Judge

         Plaintiff Dean Loren, proceeding pro se and in forma pauperis, brings this action for relief under 42 U.S.C. § 1983 for alleged violations of his First Amendment right to access a public forum and under New York's Open Meetings Law, N.Y Public Officers Law Art. 7, § 103 (the "Open Meetings Law"). In his First Amended Complaint, Dkt. 6 ("FAC"), brought against a range of public and private entities and individuals, Loren appears to make two claims. The first is that defendants violated his First Amendment rights when they restricted his access to public access television channels administered by a private non-profit organization, the Manhattan Community Access Corporation (also known as "Manhattan Neighborhood Network" or "MNN"). The second is that MNN holds meetings but does not permit members of the public to attend them, in violation of the Open Meetings Law, although he does not appear to allege that he was ever denied access to a particular meeting.

         Defendants now move to dismiss. They argue that the allegations in the FAC fail to state a claim upon which relief may be granted, requiring dismissal under Federal Rule of Civil Procedure 12(b)(6), because MNN and its employees are not state actors, as required for liability under § 1983, and because Loren has not alleged that the government official and entity defendants acted pursuant to an official policy, practice, or custom, as required for municipal liability under § 1983. For the reasons below, the Court grants the motions to dismiss.

         I. Background

         A. Procedural Background

         On May 11, 2016, Loren filed the original complaint. Dkt. 2. On July 14, 2016, Chief Judge McMahon, to whom this matter was previously assigned, granted Loren leave to file an amended complaint complying with Federal Rule of Civil Procedure 8. Dkt. 4. In that order, Chief Judge McMahon also denied Loren's motion to intervene, Dkt. 3, in Halleck v. Manhattan Comm. Access Corp., No. 15 Civ. 8141 (WHP) (S.D.N.Y. 2015), a case involving similar claims. She explained that this lawsuit is not the proper case for a motion to intervene in a different action, and noted that Judge Pauley denied Loren similar relief when Loren sought it in the Halleck action. Id. (citing Dkts. 37, 54 in No. 15 Civ. 8141 (WHP)).

         On September 9, 2016, Loren filed the FAC, the operative complaint here. Dkt. 6. On November 10, 2016, this case was reassigned to this Court. On December 27, 2016, various defendants filed motions to dismiss and memoranda of law in support. Dkts. 17-18, 21-24. On January 24, 2017, defendant Gloria Messer filed a motion to dismiss, Dkt. 35, and, on February 10, 2017, Messer filed an amended motion to dismiss, Dkt. 50.

         Loren has not filed a formal opposition to the motions. Instead, across several submissions, he has filed hundreds of pages of impertinent, fantastical, and abstruse materials making claims that the Court will not summarize. The Court notes that on February 3, 2017, Loren demanded that the Court recuse itself under 28 U.S.C. § 455, but did not set out facts that might warrant recusal. Dkt. 46 at 1-2.

         B. Factual Background

         The FAC's allegations are difficult to decipher, often conclusory, and almost all irrelevant. The bulk of his substantive allegations largely track allegations in the first amended complaint in Halleck. Compare, e.g., FAC ¶¶ 81-104 with Halleck, No. 15 Civ. 8141 (WHP), Dkt. 39, ¶¶ 15-38. The Court has carefully reviewed the FAC. Treating it with all due solicitude in light of Loren's status as a pro se plaintiff, the FAC-like the pleadings in Halleck-appears to allege the following:

         Cable operators operate pursuant to franchise agreements with local governments, and cable operators in New York City are required by the City to dedicate some channels to programming by members of the public, often referred to as “public access channels.” FAC ¶¶ 81-83. Both federal law and New York State Public Service Commission (“NYPSC”) regulations mandate independence in the selection of content by the cable operator and the local government. See Id. ¶¶ 85-95. For example, the Cable Communications Policy Act of 1984 prohibits cable operators from imposing any editorial control over public, educational, or governmental access channels, with an exception for obscenity. See 47 U.S.C. § 531(e). And, NYPSC regulations similarly prohibit the cable operator and the local government from exercising editorial control over public access channels. See 16 N.Y.C.R.R. § 895.4(c)(8)-(9).

         The FAC alleges that New York City awarded its cable franchises in the northern and southern parts of Manhattan to Time Warner Entertainment Company, L.P. (“Time Warner”). FAC ¶ 96. These franchise agreements require Time Warner to set aside certain cable channels for public access programming to be operated by an independent, nonprofit, membership corporation selected by the Manhattan Borough President. Id. ¶¶ 97-98. The Manhattan Borough President selected MNN, a nonprofit corporation incorporated in 1991, to administer the public access channels in Manhattan. Under the agreement between MNN and Time Warner, MNN is to maintain reasonable rules that provide for open access to public access channels on a nondiscriminatory basis and as required by applicable laws. Id. ¶¶ 99-101. MNN owns and operates two facilities-its main one on West 59th Street and another one in East Harlem-and airs programming from numerous producers and provides equipment and training at its facilities. Id. ¶¶ 65, 99, 131. MNN's rules help govern and regulate the use and access to public channel time and access to its facilities in light of the numerous users MNN serves. Id.

         Loren alleges that he is and, since 1994, has been an independent producer and “advocate” of content aired on MNN's public access channels. Id. ¶ 108. He produces at least one show, “Little Valley Music, ” a live show with a six-piece band, id. ¶ 37, and appears also to contribute to a show called “Are You A Star, ” id. ¶ 265. The gravamen of his claims is that MNN has restricted his access to its facilities, though he remains able to submit programming for airing on the public access channels. See Id. ¶ 309-10. In summary, he appears to allege that, starting in 2012, retaliatory actions were taken against him by MNN defendants that restricted his access to MNN's facilities and public access channels because of his views on MNN's administration. See, e.g., id. ¶ 57. For example, Loren alleges that on March 15, 2014, defendant Jeanette Santiago, alleged to be MNN's programming director, id. ¶ 67, switched Loren's booking without his consent to the “Closed Studio, ” id. ¶ 225. And, Loren alleges that, on April 25, 2014, defendant Chris Gethard, a producer at MNN, id. ¶ 79, invited Loren to join Gethard's show and that “when Loren asked to bring the band, defendant Gethard refused although defendant Gethard admitted he screwed Loren over by taking his bookings on previous nights, ” id. ¶ 228. Most recently, Loren alleges that, in September 2015, Loren's booking was deleted for two weeks “so that [defendant] June Middleton could do a taped show in the open studio to make money for her business.” Id. ¶ 47. Loren alleges other similar instances of conduct by defendants that he claims restricted his access to MNN's facilities.

         Loren seeks various injunctions along with compensatory and punitive damages, each in the amount of at least $50 million. ...


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